NG v Secretary of State for Work and Pensions & Anor (CSM)

For child-support purposes, a young person is treated as continuing to satisfy the qualifying-child conditions under paragraph 1A of Schedule 1 only where child benefit was properly or lawfully payable; actual payment alone is insufficient. A tribunal must therefore determine the underlying entitlement where it affects child-support liability. It must not treat an HMRC payment decision as conclusive without considering whether the statutory conditions were met.

Where the available material does not permit that issue to be determined fairly, the tribunal should consider obtaining the relevant HMRC evidence, including by joinder or document-production directions.

The father appealed against a First-tier Tribunal decision which upheld the Secretary of State’s decision that his child-support liability ended on 1 September 2010. He contended that his daughter had ceased full-time education earlier and that child benefit had not properly been payable.

The First-tier Tribunal found that child benefit had in fact been paid until the week ending 30 August 2010. It treated the HMRC position as determinative of the child-support issue. The appeal raised whether actual payment of child benefit was enough, or whether the tribunal had to determine whether it was lawfully payable.

1. Appeal allowed. The First-tier Tribunal made an error of law by treating the HMRC decision and actual payment of child benefit as determinative of the father’s child-support liability.

2. Under section 55(1)(b) of the Child Support Act 1991, a person aged over 16 but under 19 remains a qualifying child while receiving full-time education. If that condition is not met, paragraph 1A of Schedule 1 to the Child Support (Maintenance Calculation Procedure) Regulations 2000 may continue that status while child benefit is payable.

3. Applying JF v Secretary of State for Work and Pensions and DB (CSM) [2014] AACR 3, “payable” means properly or lawfully payable. The new tribunal must therefore decide first whether the child was receiving full-time education and, if not, whether child benefit was properly or lawfully payable for the relevant period.

4. The tribunal had to consider obtaining sufficient HMRC information to decide that issue. It could consider joinder of HMRC, a direction to HMRC to produce documents under rule 16, or a direction to the Agency to obtain specified information. The statutory confidentiality duty did not prevent disclosure for relevant civil proceedings or pursuant to a court order.

5. The First-tier Tribunal decision was set aside and the appeal was remitted for a complete rehearing before a differently constituted tribunal. The Upper Tribunal made no finding on the factual merits or the eventual closure date.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the father’s appeal, set aside the First-tier Tribunal’s decision for error of law, and remitted the original appeal for rehearing.
• First-tier Tribunal, Stoke-on-Trent: On 16 October 2013, dismissed the father’s appeal and confirmed that the child-support case closed on 1 September 2010.
• Secretary of State: Decision dated 12 November 2010 held that the case was closed and the father’s liability ended on 1 September 2010.